Citation NR: 9612413
Decision Date: 05/07/96 Archive Date: 05/16/96
DOCKET NO. 94-34 317 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased rating for post operative wedge
resection, left upper lobe, residuals of granuloma, with a
large scar, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Associate Counsel
INTRODUCTION
The veteran had active service from February 1953 to March
1955.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision in which the
regional office (RO) denied entitlement to an increased
rating for post operative wedge resection of left upper lobe,
residuals of granuloma, with large scar. In his notice of
disagreement, the veteran raised the issue of service
connection for osteoarthritis as secondary to his service
connected post operative wedge resection of the left upper
lobe. The issue of secondary service connection for
osteoarthritis has not been developed for appellate
consideration and is not inextricably intertwined with the
issue on appeal. It is referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service connected disability
has worsened and that it “has complicated other medical
problems.” He contends that he is entitled to an increased
rating for his service connected disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased rating for post operative
wedge resection of left upper lobe, residuals of granuloma,
with large scar.
FINDINGS OF FACT
The disability from post operative wedge resection of left
upper lobe, residuals of granuloma, with large scar is not
manifested by a tender or painful scare or more than mild
embarrassment of respiratory function and does not involve
removal of more than one rib.
CONCLUSION OF LAW
The criteria for a schedular rating in excess of 10 percent
for post operative wedge resection of left upper lobe,
residuals of granuloma, with large scar have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321,
4.1, 4.7, 4.10, 4.48, Diagnostic Codes, 5297, 7805-6811
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran has presented a well-grounded claim for increased
disability evaluation for his service-connected disability
within the meaning of 38 U.S.C.A. § 5107(a) (West 1995); cf.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well-grounded claim for an increased
rating).
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1995). Although VA must consider the entire record, the
most pertinent evidence, because of effective date law and
regulations, is created in proximity to the recent claim.
38 U.S.C.A. § 5110 (West 1991).
VA utilizes a rating schedule which is used primarily as a
guide in the evaluation of disabilities resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and their residual conditions in civil
occupations. Generally, the degrees of disability specified
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1995). It is
essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its
history. 38 C.F.R. § 4.1 (1995).
Service medical records show that a January 1955 X-ray
revealed a coin lesion of the veteran’s left lung. In March
1955, he underwent a thoracotomy during which the lesion was
diagnosed as a granuloma. Thereafter, the sixth rib was
resected and the lesion was removed by a wedge resection.
The veteran tolerated the procedure well and his
postoperative convalescence was uneventful.
A September 1955 rating decision granted entitlement to
service connection for large scar, residuals of granuloma
left lung, post operative wedge resection left upper lobe,
asymptomatic. An evaluation of 10 percent was assigned
pursuant to Diagnostic Code 7805. The 10 percent evaluation
has been continued in effect to the present. Under the
aforementioned diagnostic code, superficial, nondisfiguring
scars which are not the result of burns, and which are not
poorly nourished, with repeated ulceration, tender or
painful, are rated based on limitation of function of the
part affected.
During a VA examination in April 1993, the veteran gave a
history of smoking up to three packs of cigarettes per day
from age 30 to age 50. He denied tuberculosis, lung cancer
or fungus infections. He stated he had pneumonia in the left
lung several times in recent years but was not hospitalized.
He took no medicines for his lungs other than nonprescription
cough syrups. He had not been told that he had chronic
obstructive pulmonary disease with emphysema or bronchitis.
He was able to walk one-quarter mile and climb one flight of
stairs before developing dyspnea. The veteran complained of
sharp pain in the thoracotomy scar, particularly at times of
inspiration. He stated that his left lung was “plagued by
tiredness and [his] muscles there won’t relax.” He reported
dyspnea on exertion and occasional wheezing. He denied
chronic productive cough, fever and chills, night sweats and
hemoptysis. On examination, the veteran appeared comfortable
at rest. There was a 0.5 x 44 centimeter scar around the mid
left hemithorax. The scar was not tender nor sensitive to
touch. Chest expansion was from 43 to 44 inches. Lungs were
clear to auscultation and palpation with no rhonchi or rales.
A computerized interpretation of pulmonary function tests
indicated there was minimal obstructive lung defect. The
examiner reported mild structural changes to the lungs. His
diagnosis was status post wedge resection of the upper lobe
of left lung.
After reviewing the entire record, the Board finds that the
evidence does not support a higher rating pursuant to
Diagnostic Code 7805. The most recent VA examination
indicates that the thoracotomy scar is not tender or
sensitive to touch. The clinical findings indicate that
pulmonary function is only minimally affected. Rating such
residual respiratory disability by analogy under Diagnostic
Code 6811, a 10 percent rating is assigned for moderate
symptoms with some embarrassment of pulmonary function. A 30
percent rating requires findings of moderately severe
symptoms, with residual marked dyspnea or cardiac
embarrassment on moderate exertion, however, the clinical
data do not indicate such findings. There are no clinical
findings, nor has the veteran asserted, that the scar
adversely affects any other functional ability.
The Board notes that Diagnostic Code 6816 is not for
application under the facts of this case. That diagnostic
code provides for the assignment of a 30 percent disability
evaluation for a unilateral lobectomy and a 50 percent
evaluation for a bilateral lobectomy. However, a note
following the diagnostic code provides that such code shall
not apply to segmental resections. In this case, the veteran
underwent a wedge resection, not a lobectomy. Therefore,
Diagnostic Code 6816 is not for application.
The veteran’s disability from post operative wedge resection
has also been evaluated under Diagnostic Code 5297. Under
that diagnostic code, a 10 percent evaluation is assigned
where one rib has been removed, or where there has been
resection of two or more ribs without regeneration. A 20
percent evaluation is assigned where two ribs are removed.
Higher evaluations are for assignment when three or more ribs
are removed. The operation report of the March 1955 wedge
resection indicates that only the sixth rib was removed. The
Board concludes that the criteria for a rating in excess of
10 percent pursuant to Diagnostic Code 5297 have not been
met.
The Board has considered the veteran’s assertions that he is
in constant pain which affects his breathing while he works
and sleeps. His subjective complaints are not supported by
the clinical data from the pulmonary function tests or the
objective findings during the most recent VA examination that
the post operative scar is not tender or sensitive to touch.
The Board has also considered the contention argued by the
veteran’s representative that the veteran should be given
separate compensable ratings disability caused by the
thoracotomy scar and for removal of the 6th rib. The note
for Diagnostic Code 5297, removal of ribs, generally provides
that the rating for rib resection or removal will not be
applied with the pulmonary function codes for purulent
pleurisy, lobectomy, etc.. Moreover, as discussed above, the
scar is not otherwise productive of impairment.
Consequently, the Board finds that to so evaluate the
veteran’s service connected disability would contravene
38 C.F.R. § 4.16 (1995) which prohibits the evaluation of the
same disability manifestations under different diagnosis.
This differs from the situation discussed in Esteban v.
Brown, 6 Vet.App. 259 (1994), in which the United States
Court of Veterans Appeals held that the appellant was
entitled to combined his 10 percent rating for disfigurement
under Diagnostic Code 7800 with an additional 10 percent
rating for a tender and painful scar under Diagnostic Code
7804 and an third 10 percent rating under Diagnostic Code
5325 for interference with mastication.
In reaching its decision, the Board has reviewed and
considered the complete history of the disability in question
as well as the current clinical manifestation and the effect
the disability may have on the earning capacity of the
veteran. 38 C. F. R. §§ 4.1, 4.2, 4.41 (1995). The original
injury has been reviewed and the functional impairment that
can be attributed to pain or weakness has been taken into
account.
The Board has also considered the provisions of 38 C.F.R. §
4.7, which provide for assignment of the next higher
evaluation where the disability picture more closely
approximates the criteria for the next higher evaluations.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. The veteran’s disability from post operative wedge
resection of left upper lobe, residuals of granuloma, with
large scar, as discussed above, does not approximate the
criteria for the 20 percent evaluations under Diagnostic Code
5297 or the 30 percent evaluation under Diagnostic Code 7805-
6811.
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of “an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities” is made. 38 C.F.R. § 3.321(b)(1)
(1994). “The governing norm in these exceptional cases is:
A finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards.” Id.
The Board first notes that the schedular evaluations in this
case are not inadequate. The ten percent evaluation under
diagnostic code 7805-6811 anticipates some embarrassment of
respiratory function. A higher rating is provided for
moderately severe symptoms with marked dyspnea or cardiac
embarrassment on moderate exertion, but the medical evidence
reflects that those manifestations are not present in this
case. Similarly, there is a full range of rating which
anticipate greater disability from the removal of more than
one rib.
Second, the Board finds no evidence of an exceptional
disability picture in this case. The veteran has not
required hospitalization for his service connected
disability, nor is it shown that he requires frequent
treatment or that the disability otherwise markedly
interferes with his employment. Finally, the Board notes
that the veteran has several other nonservice connected
disorders, including hypertension and degenerative
osteoarthritis. However, there is no evidence that
impairment resulting solely from post operative wedge
resection of left upper lobe, residuals of granuloma, with
large scar warrants extra-schedular consideration. Rather,
for the reasons noted above, the Board concludes that the
impairment resulting from the veteran’s service connected
disability is adequately compensated by the 10 percent
schedular evaluation. Therefore, any failure of the RO to
discuss or refer the case for extraschedular consideration
was no more than harmless error.
ORDER
An increased evaluation for post operative wedge resection of
left upper lobe, residuals of granuloma, with large scar is
denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -